A January 10 Wall Street Journal editorial presented as fact misleading and disputed assertions about President Bush's authorization of warrantless domestic surveillance conducted by the National Security Agency.

A January 10 Wall Street Journaleditorial presented as fact misleading and disputed assertions about President Bush's authorization of warrantless domestic surveillance conducted by the National Security Agency (NSA). Claiming that the "process was routinely reviewed by Justice Department lawyers," the editorial failed to note that then-Deputy Attorney General James Comey, who was serving as acting attorney general while then-Attorney General John Ashcroft was in the hospital, objected strenuously to the continuation of the program, prompting White House chief of staff Andrew H. Card Jr. and then-White House counsel Alberto R. Gonzales -- the current attorney general -- to visit Ashcroft's hospital room to obtain Department of Justice approval. The editorial also asserted that congressional oversight committees and chief judges on the Foreign Intelligence Surveillance Court (established by the 1978 Foreign Intelligence Surveillance Act, or FISA) also knew about the program: "[T]here were plenty of people in the loop and able to blow the whistle," the Journal wrote, "if there were any real abuses going on." This assertion is disputed in numerous respects.

The Journal claimed that "[k]ey members of the relevant Congressional oversight committees were informed at least 12 times" about the NSA program. Yet as Media Matters for America has noted, members of Congress from both parties have disputed this claim, asserting that the information they received was inadequate. Sen. John D. Rockefeller IV (D-WV), Rep. Peter Hoekstra (R-MI), former Sen. Bob Graham (D-FL), and Senate Democratic Leader Harry Reid (D-NV) all said that they have never received written reports on the program, which are required under the National Security Act of 1947 (as amended in 2001). Rep. Jane Harman (D-CA) said the "program in fact goes far beyond the measures to target Al Qaeda about which I was briefed." The New York Times reported on December 21 that Graham complained he was not told "that the program would involve eavesdropping on American citizens." Shortly after the monitoring program became public, Democrats on the House and Senate intelligence committees sent a letter to Bush stating that media reports "have gone beyond what the administration" told Congress.

The Journal further contended that "there were plenty of people in the loop and able to blow the whistle" on any "real abuses." According to the Journal:

[W]e've only heard from people who, for reasons of partisanship or ignorance of the President's Constitutional war-fighting powers, object to warrantless surveillance per se.

In fact, members of Congress were prohibited from going public with their concerns about the highly classified program. In a 2003 letter to Vice President Dick Cheney - which he wrote by hand, Rockefeller said, so that his staff would not be aware of its contents -- Rockefeller protested that security restrictions left him "unable to fully evaluate, much less endorse" the wiretapping program, concerns, he has since stated, that were never addressed.

Moreover, contrary to the Journal's assertion that only those who were partisan or ignorant of the president's powers objected, the original New York Timesreport on the electronic surveillance program cited "[n]early a dozen current and former officials" who "discussed it [the surveillance program] with reporters for The New York Times because of their concerns about the operation's legality and oversight."

Other officials also actively opposed the program. On January 1, The New York Timesreported that Comey refused to approve continued use of the program in 2004, forcing Card and Gonzales to seek approval from Ashcroft, who at the time was hospitalized for gall bladder surgery. A January 10 article in The New York Times reported that Judge Colleen Kollar-Kotelly, the presiding judge of the FISA Court, "raised objections in 2004 to aspects of the program and instructed for a time that no material obtained by the N.S.A. without warrants could be presented to the court in warrant applications." In addition, Judge James Robertsonresigned from the FISA Court in December to protest the Bush eavesdropping program. He has retained his position as a federal district judge for the District of Columbia.

Key members of the relevant Congressional oversight committees were informed at least 12 times. The chief judges of the FISA court knew about it. The process was routinely reviewed by Justice Department lawyers and by the Attorney General himself. And the President examined and reauthorized the program every 45 days or so.

In short, if there were any real abuses going on here, there were plenty of people in the loop and able to blow the whistle. Instead, we've only heard from people who, for reasons of partisanship or ignorance of the President's Constitutional war-fighting powers, object to warrantless surveillance per se. Dressing up such a separation of powers dispute in the language of scandal, as is happening now, serves no one but our common enemies.

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